Introduction
The 2016 Supreme Court decision in R v Jogee [2016] UKSC 6 changed the approach to joint enterprise liability, particularly for secondary involvement in murder. This ruling defined the required mens rea for a secondary party to be found guilty of murder, moving away from the earlier “foresight of possibility” standard from R v Chan Wing-Siu [1985] AC 82. R v Anwar [2016] EWCA Crim 551, a later Court of Appeal decision, dealt with how to apply the Jogee principles to appeals. This decision gives instructions on reviewing convictions decided before Jogee under the updated rules of joint enterprise liability. Key points include tests for substantial injustice and whether the conviction remains legally valid.
The Jogee Principles and Their Effect
Jogee ruled that for a secondary party to be convicted of murder, the prosecution must show they meant to assist or encourage the main offender to commit murder, knowing the principal intended to kill or cause serious harm. This replaced the earlier lower threshold of foresight, which had expanded joint enterprise liability. Jogee acknowledged that foreseeing a possible outcome did not mean intentionally supporting it. This change affected many individuals convicted under the previous legal standard, possibly leading to their convictions being overturned.
Applying Jogee in Anwar and Later Appeals
R v Anwar focused on how Jogee affects appeals. The court decided the main question is whether the conviction is invalid under Jogee. This requires checking the trial judge’s instructions to the jury and the evidence presented at trial. If the jury was directed using the pre-Jogee foresight standard, the conviction is likely invalid unless strong evidence shows the jury would have reached the same decision under Jogee.
Assessing Substantial Injustice
The Criminal Appeal Act 1967 outlines rules for appeals against convictions. Section 2 allows the Court of Appeal to overturn a conviction if it is invalid. For Jogee appeals, Anwar confirmed that showing substantial injustice is not an extra requirement beyond proving the conviction is invalid. Instead, a legal error making the conviction invalid automatically constitutes substantial injustice.
Checking the Validity of a Conviction
Deciding a conviction’s validity involves a detailed review of the case facts. The Court of Appeal in Anwar stressed this is not just a re-examination of evidence. Courts must assess how Jogee affects the original verdict by analyzing jury instructions, evidence, and arguments from both sides. If the case relied on the old foresight rule, the conviction is likely invalid. However, if clear evidence shows intentional assistance or encouragement with the required knowledge, the conviction may remain.
Case Examples
R v Johnson [2016] EWCA Crim 1613 shows how Anwar and Jogee are applied. In Johnson, the appellant was convicted of murder under pre-Jogee foresight rules. The Court of Appeal, applying Anwar, overturned the conviction because the jury received incorrect legal directions, making it invalid. Trial evidence did not conclusively prove the appellant meant to assist or encourage murder with the necessary knowledge, so applying Jogee invalidated the conviction.
Conclusion
The Anwar decision gives courts a structure to apply Jogee to appeals. By confirming that substantial injustice is part of assessing validity and setting out steps to review convictions, Anwar ensured fair treatment in appeals against pre-Jogee convictions. Both Jogee and Anwar highlight the need for correct legal directions and proper application of the law to achieve justice. These cases continue to influence appeals, ensuring joint enterprise liability is used accurately and convictions depend on valid legal principles, not the rejected foresight rule. This shows the law’s continuous improvement of criminal responsibility standards.
